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Get Ready for Trench Warfare over Religious Liberty, Says Law Professor about Same-Sex Marriage

Gay rights advocate protests “religious freedom”

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John Burger - published on 07/07/15 - updated on 06/08/17

Catholic University's Robert Destro discusses the "new normal" in America

An Oregon bakery that declined making a cake for a lesbian couple’s wedding was ordered to pay the women $135,000 in damages the other day. 

County clerks in Texas and Alabama are risking disciplinary action for refusing to sign marriage certificates that have the names of two men or two women. 

And at least one priest has announced that he will no longer serve as an agent of the state in conducting marriages.

Welcome to post-Obergefell America. 

While gay rights activists are celebrating the "new normal" in America, some people are still trying to digest Supreme Court Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case that mandated same-sex marriage nationwide, and wondering how the 5-4 decision will affect religious liberty.

Catholic University law professor Robert A. Destro says we’re in for a long fight. 

Destro, founding director of the Interdisciplinary Program in Law & Religion at Catholic University’s Columbus School of Law, served as a Commissioner on the United States Commission on Civil Rights and led the Commission’s discussions in the areas of discrimination on the basis of disability, national origin and religion. He is co-author, with Michael S. Ariens, of Religious Liberty in a Pluralistic Society (Carolina Academic Press). He spoke with Aleteia about the religious freedom implications of Obergefell.


What are your thoughts on the decision, and where do you think it will lead, particularly in the realm of religious freedom?

I think there’s going to be a lot of fighting in the years to come about the nature of religious freedom. The Obergefell decision is only the beginning. There’s a lot more to the religious freedom issue than meets the eye. All you have to do is read the literature to see where this is going. LGBT advocates have been very open about the civil rights agenda going forward. Hillary Clinton has said that “[r]ights have to exist in practice—not just on paper.”  She warns that “Laws have to be backed up with resources and political will. And deep-seated cultural codes, religious beliefs and structural biases have to be changed.” President Obama has said much the same thing, and James Obergefell, the plaintiff who challenged Ohio’s laws, has described the religious freedom argument as "offensive." 

So I think we’re looking at a protracted battle over whether local, state and federal government agencies are going to be willing to allow legitimate dissent from what is rapidly becoming the new orthodoxy about sexual identity and relationships.  If, as the Court says, individuals have a constitutional right “to define and express their identity,” does that right also include the right to demand that the law force others to accept and affirm that identity?  Justice Kennedy’s opinion says that it does.  To deny equal treatment based on “sincere, personal opposition … demeans or stigmatizes those whose own liberty is then denied.” If Justice Kennedy and Hillary Clinton are right that the government has the right and duty to forbid expression that “demeans or stigmatizes” others because of the ways in which they express their “identities,” religious dissenters are in deep trouble.

Consider the Bruce (Caitlyn) Jenner case. Legally, your “name” is “what you call yourself,” so Jenner certainly had the legal right to change his name from Bruce to Caitlyn and to ask the state and his fellow citizens to respect that choice.  But that’s not what the debate was about. People change their names every day. Jenner also has the right, as a human person, to demand that the state provide him “equal protection of the laws” and that his fellow citizens respect his rights to life, liberty and property. But what about his right to define his own “identity”? Does Jenner have the right to demand that those who comment on his case use the pronoun “she,” or to affirm the proposition that his choice to present himself as a woman requires others to accept and affirm publicly that he is one? If so, it will not be enough for those who have contrary views simply to keep quiet. These are the free speech and religious freedom battles of the future.

Obergefell is, to be sure, about “marriage equality,” but it is also about something far more profound. It’s always been about, as Justice Kennedy put it, affirming the dignity of personal choices and relationships that reflect one’s identity.

Do you think it’s plausible that some same-sex couple will now come along and demand that a particular Catholic church allow them to have a “marriage” in the church, using a priest or deacon to officiate?
No. At least at this point, I do not think this is a realistic fear. In fact, I really wish people would stop talking about that issue because it deflects attention from the issues Catholic institutions are facing today. There was a story last week in Aleteia, about the Chair of the Fordham Theology Department marrying his same-sex partner in an Episcopalian ceremony. Set aside for the moment the fact that same-sex unions were perfectly legal in New York State, and that the professor had the legal right to marry his partner. The more important question was symbolic. Why in heaven’s name did the president of the university authorize an official statement which read in part that, "same-sex unions are now the law of the land, and Professor Hornbeck has the same constitutional right to marriage as all Americans?" You wonder, “Are these people even thinking?” Because I have to assume that the university chose its words very carefully, am I also to assume that Fordham itself basically disagrees with the Church’s teaching on same-sex relationships?

It gets worse. If legality becomes the measure of morality, then perhaps Fordham should be paying for abortions too. If the chairman of the theology department teaches by word and deed that abortion and gay marriage are legitimate moral choices, is that okay with Fordham? In sum, the first big battles are going to be within the Church itself over the meaning of the Catechism’s teachings about chastity and homosexuality (¶¶ 2357-2359). As I read that text, it says: “Love the sinner, but the Church cannot accept or affirm the behavior.”

If the law ever requires priests to perform same-sex marriage ceremonies or demands that they lose their licenses to perform marriages because they will not bless same-sex unions, it will be because every other religious liberty has already been bulldozed by the new orthodoxy. 

Let’s reconsider Fordham. Would the president of Fordham call a meeting of faculty and staff and ask, “Are we going to operate in conformity with Catholic teaching or not?” How should we interpret that question? A reasonable observer would assume that Fordham’s president has decided to put the question of conformity to Catholic teaching to a vote, and that the leadership of the university is prepared to state publicly that Fordham rejects the teaching authority of the Church on the marriage issue. That’s what Fordham has done here. When a Catholic university goes out of its way to “affirm” or “applaud” the same-sex union of the Chair of its Theology Department, it is making a very public, and completely voluntary, statement about its disagreement with the Church on the marriage issue. Nothing in the Supreme Court’s opinion requiring the states to accept and solemnize same-sex unions requires a Catholic university to “affirm” or “applaud” them.  

Does Fordham regularly make official statements about any other employee’s wedding? If they don’t, Fordham is making a much stronger statement affirming same-sex marriage than one might otherwise expect from a Catholic university. My guess is that a search of the Fordham website will, at best, report the news that students and alumni were married, but you will search in vain for an official statement or support for their right to do so. 

Consider Fordham’s alternatives. They didn’t have to comment at all, but we know that such a high-profile case would cause the press to ask questions. What should they have said? No university issues a statement like that without someone having thought about it very carefully. But consider Fordham’s alternatives: Had they said “no comment” or something lukewarm or non-committal about the new relationship, they would have been criticized. A statement reaffirming the Church’s teaching would have been condemned as “cruel,” “homophobic” and “discriminatory.” That’s where the challengers are going to come from. 

What other dangers now exist because of Obergefell? What about tax exempt status being denied to institutions that refuse to acknowledge same-sex “marriage?” 

It’s going to be trench warfare. The IRS is already out of control. They’ve been targeting people they disagree with for quite a long time. They did it to pro-lifers back in the early 1980s, and they are targeting conservatives now. People of faith are going to have to start looking at tax reform alternatives that take that kind of authority out of the hands of the IRS altogether. You want a good reason for abolishing the IRS, I’ll give you two. One is the abusive nature of the IRS: It grabs your money first and forces you to ask questions later. The second is its sheer incompetence. I wouldn’t be surprised if Russian and Chinese hackers haven’t already stolen our income tax information. And you’re going to put them in charge of policing compliance with the "spirit" of Obergefell? There are going to be big fights over that.

But an attempt by the IRS to revoke the tax exemptions of churches and religious institutions is, I hope, down the road. The immediate exemption issues will arise at the state and local levels over property tax exemptions; the use of parks, sports facilities, and library meeting rooms; and whether believers are fit to run for or hold public office.  Watch what happens to individual believers—like the cake bakers and wedding photographers—who have the audacity to refuse to lend their artistic skills to solemnize relationships they reject. Cases such as these are going to make us rethink what we mean by “religious liberty” in this country. We’re going to have to go “back to the future” and reconsider the reasons why European and American colonial governments made religious dissenters pariahs in their own communities.  Back then, dissenters had to run away to places to the United States. 

What about preemptive measures? The US bishops have expressed support for a bill called the First Amendment Defense Act.

The First Amendment Defense Act is a step in the right direction, but it is only a first step.  Amendments to federal and state Religious Freedom Restoration Acts [RFRAs] are also first steps, but, in the long run, they will not get the job done because they force religious believers to argue that they should be exempt from what the Supreme Court calls “neutral and generally applicable laws.”  

The LGBT community openly states that any public action or speech inconsistent with a person’s chosen identity is a manifestation of “hate” and “bigotry” that creates a “hostile environment.” For them, just as for those who argue that companies and private citizens who refuse to pay for birth control and abortion are engaged in a “war against women,” the government is obligated to use (in Hillary Clinton’s words) its “resources and political will” because “deep-seated cultural codes, religious beliefs and structural biases have to be changed.”

Laws that seek to change or penalize religious beliefs are not “neutral or generally applicable.” They are unconstitutional. Laws that forbid speech or actions that express moral disapproval of government-sanctioned behavior are neither “neutral” nor “generally applicable,” and should be resisted at all costs. But make no mistake: we will see a very aggressive effort to stamp out efforts by churches and religious institutions to affirm their teachings on the nature of human sexuality and sexual morality.

If you want to look at where things are going here, talk to religious liberty experts in Canada and Great Britain.  Ask them about the cases being filed in local civil rights and human rights commissions against believers and religious organizations. Take a look at Smith v. Knights of Columbus, one of the first religious freedom/same-sex union cases in North America. Is it possible that the lesbian couple did not know that the hall they sought to rent for their wedding reception was owned by the Archdiocese of Vancouver and managed by the Knights of Columbus? Not possible. They demanded—and got—damages. In Britain, the UK Education Secretary stated on BBC4’s June 30, 2015 “Today” program that teachers who hear students say that homosexuality is “wrong” or “evil” should be treated like “extremists” like ISIL members who are “extremely intolerant of homosexuality.”

Our current religious freedom laws are not written to deal with problems such as these. Figuring out how to respond in a respectful way befitting followers of Christ is going to be a challenge. The emerging story will play out in many chapters. The facts, the arguments, and the politics will not be pretty. And the costs in damages, lost opportunities, legal fees and public relations will run into the hundreds of millions dollars.  

John Burger is news editor for Aleteia’s English edition.

For further reading on this subject, see:

Robert A. Destro, “You Have the Right to Remain Silent”: Does the U.S. Constitution Require Public Affirmation of Same-Sex Marriage?, 27 BYU J. Pub. L. 397 (2013)  Available at: http://digitalcommons.law.byu.edu/jpl/vol27/iss2/6 and Professor Ursula Bassett’s of the Faculty of Law at the Catholic University of Argentina in article about where family law is going: Ursula C. Basset, How the Battle to Redefine Marriage Affected Family Law in Argentina, 27 BYU J. Pub. L. 529 (2013). Available at: http://digitalcommons.law.byu.edu/jpl/vol27/iss2/10

Tags:
HomosexualityReligious Freedom
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